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CAS 2011/A/2384 UCI V. Alberto Contador Velasco & RFEC CAS

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CAS 2011/A/2384 UCI V. Alberto Contador Velasco & RFEC CAS CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC CAS 2011/A/2386 WADA v. Alberto Contador Velasco & RFEC ARBITRAL AWARD delivered by COURT OF ARBITRATION FOR SPORT Sitting in the following composition: President: Mr Efraim Barak , attorney-at-law in Tel Aviv, Israel Arbitrators: Dr Quentin Byrne-Sutton , attorney-at-law in Geneva, Switzerland Mr Ulrich Haas , Professor in Zürich, Switzerland Ad hoc clerk: Mr Dennis Koolaard , Broek op Langedijk, the Netherlands in the arbitration between UNION CYCLISTE INTERNATONAL (UCI) , Aigle, Switzerland Represented by Mr Philippe Verbiest, attorney-at-law in Leuven, Belgium, and Mr Pablo Jimenez de Parga, attorney-at-law in Madrid, Spain -First Appellant- and WORLD ANTI-DOPING AGENCY (WADA) , Lausanne, Switzerland Represented by Mr Jean-Pierre Morand, Mr Yvan Henzer, Mr Ross Wenzel, attorneys-at-law in Lausanne, Switzerland and Mr Olivier Niggli, WADA Legal Counsel, attorney-at-law in Lausanne, Switzerland. -Second Appellant- and ALBERTO CONTADOR VELASCO , Madrid, Spain Represented by Mr Mike Morgan, solicitor-at-law in London, United Kingdom, Mr Adam Lewis QC, barrister-at-law in London, United Kingdom, Mr Antonio Rigozzi, attorney-at-law in Geneva, Switzerland and Mr Gorka Villar, attorney-at-law in Madrid, Spain -First Respondent- and REAL FEDERACIÓN ESPAÑOLA DE CICLISMO (RFEC) , Madrid, Spain Represented by Dr. Luiz Sanz Hernandez and Ms Carmen Ramos, attorneys-at-law in Madrid, Spain -Second Respondent- CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC - Page 2 CAS 2011/A/2386 WADA v. Alberto Contador Velasco & RFEC I. THE PARTIES II. FACTUAL BACKGROUND III. PROCEEDINGS BEFORE THE CNCDD OF THE RFEC IV. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT V. SUBMISSIONS OF THE PARTIES A. UCI B. WADA C. MR CONTADOR D. RFEC VI. THE HEARING VII. JURISDICTION VIII. ADMISSIBILITY IX. APPLICABLE LAW TO THE MERITS X. PRELIMINARY ISSUES A. THE PROTECTED WITNESS B. WITNESS STATEMENT OF MR JAVIER LOPEZ C. ADMISSIBILITY OF NEWLY PRESENTED EVIDENCE XI. MERITS (1) APPLICABLE REGULATORY FRAMEWORK (2) THE ISSUES THAT NEED TO BE DECIDED (3) THE APPLICATION OF THE BURDEN AND STANDARD OF PROOF IN THE CIRCUMSTANCES OF THIS CASE A. UCI B. WADA C. MR CONTADOR D. RFEC E. POSITION OF THE PANEL (4) THE MEAT CONTAMINATION THEORY A. DID THE ATHLETE EAT MEAT ON BOTH 20 AND 21 JULY 2010? B. WAS THE MEAT THE ATHLETE ATE CONTAMINATED WITH CLENBUTEROL ? 1) As to the supply chain of the meat in question 2) As to the regulatory framework 3) As to the statistics C. THE PHARMACOKINETICS CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC - Page 3 CAS 2011/A/2386 WADA v. Alberto Contador Velasco & RFEC D. THE PANEL ’S CONCLUSIONS REGARDING THE MEAT CONTAMINATION THEORY (5) THE BLOOD TRANSFUSION THEORY A. THE ALLEGED TAINTED ENVIRONMENT OF THE ATHLETE B. THE ATHLETE ’S BLOOD PARAMETERS C. TRACES OF PHTHALATES 1) The polygraphic examination 2) The scientific possibility 3) The pharmacological and toxicological possibility a.1 The toxic clenbuterol treatment of the theoretical donor a.2 The donation shortly after the last administration b. The Athlete’s urine production c. Fitting to the data D. THE PANEL ’S CONCLUSIONS REGARDING THE BLOOD TRANSFUSION THEORY (6) THE SUPPLEMENT THEORY (7) IS THE MEAT CONTAMINATION THEORY MORE LIKELY TO HAVE OCCURED THAN THE SUPPLEMENT THEORY ? XII. THE SANCTIONS XIII. THE STARTING DATE OF THE PERIOD OF INELIGIBILITY XIV. CONCLUSION XV. COSTS CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC - Page 4 CAS 2011/A/2386 WADA v. Alberto Contador Velasco & RFEC I. THE PARTIES 1. The Union Cycliste Internationale (hereinafter: “UCI”) is a non-governmental association of national cycling federations recognized as the international federation governing the sport of cycling in all its forms, with its registered office in Aigle, Switzerland. 2. The World Anti-Doping Agency (hereinafter: “WADA”) is the independent international anti-doping agency, constituted as a private law foundation under Swiss Law with its seat in Lausanne, Switzerland, and having its headquarters in Montreal, Canada, which aim is to promote, coordinate and monitor, on an international level, the fight against doping in sports in all its forms. 3. Mr Alberto Contador Velasco (hereinafter: “Mr Contador” or the “Athlete”) is a professional cyclist of the elite category and has the Spanish nationality. He is an Elite Pro license holder (n°2247396) and is currently a rider of the Saxo Bank Sungard ProTeam. 4. The Real Federación Española de Ciclismo (hereinafter: the “RFEC”) is the governing body of cycling in Spain with its headquarters in Madrid, Spain. The RFEC is a member of the UCI. II. FACTUAL BACKGROUND 5. Below is a summary of the main relevant facts, as established on the basis of the parties’ written submissions, the testimonies given at the hearing and the pleadings. 6. This background and summary is made for the sole purpose of providing a synopsis of the matter in dispute. Further details of the parties’ factual allegations and legal arguments are examined, where relevant, in the sections of this award dedicated to the summary of the parties’ contentions and in the legal discussion of the claims. 7. Mr Contador, then a member of the ProTeam Astana, participated in the 2010 Tour de France, a stage race on the UCI’s international calendar that took place from 3 July to 25 July 2010. Mr Contador won the 2010 Tour de France. 8. On 21 July 2010, a rest day following the 16 th stage of the 2010 Tour de France, the UCI submitted Mr Contador to a urine doping test pursuant to the UCI Anti-Doping Regulations (hereinafter: the “UCI ADR”) between 20:20 and 20:30 in the city of Pau, France 1. 9. Mr Contador confirmed on the doping control form that this sample (Sample number 2512045) (hereinafter: the “Sample”) had been collected in accordance with the regulations. 1 The Panel notes that in the appealed decision of 14 February 2011, it is stated that the doping test took place at the end of the 16 th stage of the 2010 Tour de France, at precisely 19:35. However, according to the evidence provided by WADA, 21 July was a rest day after the 16 th stage. From WADA’s evidence can be derived that the sample was taken between 20:20 and 20:30, as confirmed by Mr Contador in his own statement. CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC - Page 5 CAS 2011/A/2386 WADA v. Alberto Contador Velasco & RFEC 10. The Athlete’s A Sample was analysed on 26 July 2010 at the WADA-accredited Laboratory for Doping Analysis - German Sports University Cologne in Cologne, Germany (hereinafter: the “Cologne Laboratory”). 11. It resulted from the certificate of analysis of 19 August 2010 that Mr Contador’s A Sample (A-2512045) contained clenbuterol in a concentration of 50 pg/mL. Clenbuterol is a Prohibited Substance classified under Article S1.2 (other Anabolic Agents) of the 2010 WADA Prohibited Substances List. 12. On 24 August 2010, UCI informed Mr Contador by telephone of the adverse analytical finding. Mr Contador was also informed that he was provisionally suspended from the date of receipt of the official notification in accordance with Article 235 UCI ADR. Furthermore, a meeting was arranged between UCI and Mr Contador on 26 August 2010. 13. The meeting of 26 August 2010 was arranged in order to deliver Mr Contador the official notification of the adverse analytical finding, the full documentation package of the A Sample analysis (Documentation Package A-2512045), the notification of the provisional suspension and also to explain the management process of the case. On this occasion, Mr Contador requested the opening and analysis of the B Sample (B-2512045) and acknowledged the decision that he was provisionally suspended. During this meeting, the Athlete explained that the origin of the Prohibited Substance must have been contaminated meat. 14. On 8 September 2010, in the presence of Mr Contador’s representatives, Dr de Boer and Mr Ramos, the B Sample analysis took place. The result of the Analysis of the B Sample confirmed the A Sample result. 15. As a consequence of the low concentration of clenbuterol found in Mr Contador’s A and B Samples and the fact that the samples that had been collected prior to 21 July 2010 did not contain clenbuterol, the UCI, as well as WADA, decided to conduct a series of investigations in an attempt to understand the finding obtained and, in particular, whether the finding might indicate that other anti-doping violations could have been committed than just the presence of clenbuterol. 16. Following WADA’s request, the Cologne Laboratory reanalysed three other urine samples provided by Mr Contador during the 2010 Tour de France. The bodily samples of 22, 24 and 25 July 2010 showed further clenbuterol concentrations of 16 pg/mL, 7 pg/mL and 17 pg/mL respectively. A blood sample was also taken on Mr Contador on the morning of 21 July 2010. Such blood sample also contained clenbuterol at a concentration of around 1 pg/mL. 17. On 30 September 2010, Mr Contador gave a press conference where he announced the finding of a prohibited substance in one of the urine samples that he had provided during the 2010 Tour de France. 18. Following the investigation conducted together with WADA (WADA issued a report on 5 November 2010), the UCI concluded that the file contained a sufficient basis to proceed with the case as an apparent anti-doping rule violation. Therefore, by letter of 8 November CAS 2011/A/2384 UCI v. Alberto Contador Velasco & RFEC - Page 6 CAS 2011/A/2386 WADA v.
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